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CANNON v. HECKLER

February 5, 1986

CHARLES CANNON, Plaintiff,
v.
MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: STERN

 This case comes before the Court on a motion by claimant Charles Cannon to vacate this Court's order of June 13, 1984, which remanded this case to the Secretary of Health and Human Services for proceedings consistent with Kuzmin v. Schweiker, 714 F.2d 1233 (3d Cir. 1983). In moving to have that order vacated, claimant seeks to have this Court reverse the Secretary's termination of claimant's entitlement to a period of disability and disability insurance benefits. In addition, claimant moves for an award of attorney's fees under the Equal Access to Justice Act, 28 U.S.C. ยง 2412 (1985). For reasons explained below, claimant's motion will be granted in its entirety.

 FACTS

 Charles Cannon's odyssey through the Social Security Administration (SSA) began three years ago on January 11, 1983, when he received notice of the SSA's determination that he had regained the ability to engage in substantial gainful activity. Effective in March 1983, the SSA terminated the disability insurance benefits Cannon had been receiving for four years, since 1979, when the SSA found he suffered from arteriosclerotic heart disease. Cannon applied for reconsideration of his termination without success. A hearing was held before an Administrative Law Judge (ALJ) on July 15, 1983. In an opinion of August 26, 1983, the ALJ held that Cannon's disability had ceased. This determination became the final decision of the Secretary when it was affirmed by the Appeals Council on October 5, 1983.

 At the time of the ALJ's hearing, Cannon was forty-nine years old. He has an eighth-grade education and was employed as an assembly line worker at a Ford Motor Co. plant from 1970 to 1979. Prior to that job, Cannon worked as a hairdresser. The record is inconsistent on the number of years Cannon spent as a hairdresser. The ALJ classified the hairdresser job as light work. The assembly line job, on the other hand, required heavy lifting, pushing and pulling.

 At the ALJ's hearing, Cannon testified that he suffered severe chest pains on January 30, 1979 while at work. He was subsequently admitted to John F. Kennedy Hospital in Menlo Park, New Jersey for two weeks and shortly thereafter to St. Joseph's Hospital for an angiogram. Cannon testified that he has not been rehospitalized, except for an appendectomy in 1981, and that he has seen Dr. Arthur L. Roth approximately once per month. He continues to experience regular chest pains which he relieves by doses of nitroglycerin. He also takes Inderal and Isordil. He said the medication makes him sleepy.

 Claimant also testified that he has trouble sitting for any length of time because his feet, right thigh and buttock become numb. He reported that he could not walk more than two blocks without getting tired, that he becomes short of breath when climbing stairs, and that he has trouble bending, pushing, pulling and reaching because he quickly becomes short of breath. He does almost no household chores and watches television most of the time. After the 1979 attack, he once took a two-week vacation in California.

 In written statements that were part of his application for continuation of benefits and part of the record before the ALJ, Cannon claimed his condition had worsened since 1979.

 The medical evidence before the ALJ consisted of the following. First, Dr. Burton M. Cohen, M.D., a state consultative physician, submitted his findings after conducting a treadmill test using the Bruce protocol. The report, dated December 13, 1982, notes that after plaintiff had walked six minutes and ten seconds, he became very short of breath, began coughing, and rales appeared. The test was stopped at this point, although Cannon experienced no pain. ST segment depressions appeared in lead I, and accentuated in lead II and in lead III. After ten minutes, the depressions had returned almost to baseline. Dr. Cohen concluded:

 Dr. Arthur L. Roth, M.D., plaintiff's treating physician since the attack in 1979, submitted a brief report dated March 31, 1982, which included plaintiff's history and Dr. Roth's comment that plaintiff "continues on very limited activities." Dr. Roth also noted that plaintiff continues to have chest pain unrelated to exertion. His diagnosis was coronary artery disease.

 A subsequent letter from Dr. Roth, dated January 28, 1983, was submitted noting that, since plaintiff stopped working, a considerable amount of emotional stress was relieved, which to some extent helped plaintiff's angina. Dr. Roth reported that plaintiff has "documented coronary disease" and still sees him regularly, that plaintiff still has chest pain unrelated to exertion, that plaintiff still takes Isordil and Inderal, as well as nitroglycerine for anginal pain. Dr. Roth concluded, "I believe that Mr. Cannon is disabled due to his coronary disease."

 The ALJ, applying the standards for an initial disability determination, rather than the Kuzmin1 standard applicable to cessation of benefits situations, found that plaintiff is capable of performing past relevant work as a hairdresser. The ALJ relied primarily on a "Residual Functional Capacity Assessment" of a staff physician at the Office of Disability Determination. This report was made by a non-examining physician who extrapolated from the treadmill test performed by Dr. Cohen, and concluded that plaintiff retains the residual functional capacity for medium work, being able to sit for six hours, lift and carry up to 25 pounds (occasionally up to 50 pounds), with no impairment in using his arms and hands for pushing, pulling or manipulations. The signature of this physician is illegible so his qualifications are unknown. The ALJ discounted Cannon's complaints of pain on the ground that they were inconsistent with his description of his daily activities. Beginning in January 1983, the ALJ concluded, Cannon has the residual functional capacity to perform work, except work involving prolonged walking, heavy lifting or carrying and constant bending or climbing. Cannon can perform past relevant work as a hairdresser and is not disabled.

 On June 13, 1984, this Court vacated the decision of the Secretary and remanded for proceedings consistent with Kuzmin v. Schweiker, 714 F.2d 1233 (3d Cir. 1983). In Kuzmin, the court held that in a termination proceeding, once a disability claimant has introduced evidence that his or her condition remains essentially the same as it was at the time of the earlier determination, claimant is entitled to the benefit of the presumption that his or her condition remains disabling. Id. at 1237. The court noted that a claimant's burden is often eased by the fact that he or she remain under medical care, so obtaining medical evidence of continuing disability is not difficult. Id. In addition, the court noted that, in some cases, the medical evidence previously submitted would suffice to meet the burden if supplemented by the claimant's own testimony as to ...


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